A formal request has been made to request a Royal Commission into the allegations, investigations, handling, and results of events surrounding the death of the late Kent Shirley.

If you are following this situation and are concerned about how it was handled, you might take the time to contact your member of parliament or candidate for this position and inform them of your concerns.

The founding chair of Advocis is being sued by a former assistant to his financial planning practice at a division of Assante Corp.

In some ways, this is a classic David vs. Goliath tale. The goliath figure is Brian Mallard, a wealthy, often-quoted industry figure with multiple credentials and 32 years in the business.

He manages an Assante branch in Saskatoon. He also was -- from January, 2003 until May, 2004 -- the founding chair of Advocis, which represents Canada's financial advisors and insurance sales-people.

Facing him is a figurative David: Kent Shirley, a Saskatoon-based financial advisor who filed a constructive dismissal lawsuit in March. Shirley is suing Mallard personally, plus two companies bearing his name and Assante Financial Management Ltd.

Mallard's amended statement of defence and counterclaim, filed in Saskatoon in June, depicts Shirley as a troubled young man with a host of personal problems.

In an interview, Mallard indignantly dismisses the suit as an attempt to "extort" $50,000 from him: the amount Shirley borrowed from a bank to buy Assante stock from his (Shirley's) brother, also with Assante. Mallard cosigned the loan, pledging Assante stock as collateral.

Shirley won't speak on the record about his motivations, but far from shutting up and disappearing, the opposite seems to be happening.

What began as an obscure employment dispute is escalating into a case that could shed much light on sales practices in Canada's financial advice business.

His statement of claim alleges Mallard did not practise what he preached in his founding role at Advocis. Or as the document puts it in more formal language: "The Defendants condoned, engaged in and required Shirley to engage in unethical and/or illegal conduct."

The suit says the defendants "regularly breached codes, laws, rules and regulations and required him to do so as a condition of his continued employment." Shirley was expected to "participate in, and/or turn a blind eye to, the Unethical Practices."'

The alleged unethical practices include providing insider information to clients, making personal loans to clients, giving stock advice to clients, facilitating trades while not properly licensed to do so, selling personal stock to clients, and issuing personal guarantees on client accounts.

All those allegations are false, the defence argues, "brought solely to embarrass the Defendants and tarnish their reputations." The defendants "deny breaching ethical codes, laws, rules and regulations or requiring the Plaintiff to do so as a condition of his continued employment." Mallard's counterclaim also seeks damages for negligent or intentional misrepresentation and breach of contract.

In an interview, Mallard defends each charge, but admits he provided personal guarantees to some clients worried about bear market losses in 2000. However, he says this was acceptable practice before the MFDA set up shop.

Except for seven months' medical leave in 2002-2003, Shirley's suit says he was "employed full time" at Assante from 1996 until January, 2004.

Mallard denies Shirley was constructively dismissed; he says he was a contract worker rather than a salaried employee, and wasn't terminated but quit.

Either way, Shirley was afforded a bird's-eye view of internal incentives for advisors to replace third-party funds in client portfolios with more profitable in-house Assante product. He was also there as this strategy was parlayed into the ultimate sale of the firm to C.I. Fund Management.

It's this aspect of the case which has attracted the attention of Joe Killoran, who describes himself as "Canada's most feared investor advocate" [see www.investorism .com]. He believes the case illustrates how the industry is still not properly regulated.

Killoran focused on the sale of proprietary funds in a presentation last week to the Ontario Finance Committee's five-year review of the Ontario Securities Commission. He accused the OSC and other provincial securities commissions of "gross malfeasance" in the lax way they permit integrated fund manufacturer/ distributors to incent advisors to sell in-house proprietary funds.

This has become an issue in the United States, which is why Killoran forwarded Assante's pre-IPO business plan to New York State Attorney General Eliot Spitzer. Killoran drew Spitzer's attention to the sales practices of Assante's U.S. arm: Loring Ward International. Killoran says he contacted Spitzer because Canada does not have the whistle-blower protection laws the U.S. has had since 1989.

Killoran says the original business plan outlined payment of bonus Assante shares to advisors once they converted 40% of client assets to Assante's proprietary Optima funds. He says this practice skewed the provision of objective advice.

For his part, Mallard insists, "I have 500 clients that love me." In typically strong language, he adds he's "pissed off with a system that assumes every advisor is guilty."

He says the more interesting story is Assante's reaction to the suit, including the firing of at least one internal compliance officer.

Mallard says securities commissions have ceded authority to self-regulated bodies like the MFDA and the Investment Dealers Association. Rather than investigate alleged abuses themselves, the MFDA tells dealers they have received a complaint about an advisor. At its request, two Assante compliance officers audited the Saskatoon branch in May, Mallard says. One later moved to the MFDA.

This case may or may not end up swept under the rug. But from what I've seen, it merits closer attention.

Former Prime minister Jean Chretien leaves his Ottawa home yesterday on the eve of the Adscam report's release. (Jonathan Hayward CP)
Today, as most Canadians try to digest Justice John Gomery's 1,400-page compendium of stomach-churning sleaze in high places, two of the rare heroes of Adscam can only read it and weep.

They are the whistleblowers, a federal auditor and a Montreal adman who tried to do right by exposing so much wrong in the sponsorship fiasco.

More than 10 years ago, government accountant Allan Cutler began complaining about all kinds of hanky-panky in the awarding of federal advertising contracts. If his red flags had been heeded, Adscam may never have happened.

Four years later, a Montreal advertising executive -- who has always insisted on anonymity -- started seeing millions of dollars flowing from the public purse into ad agency bank accounts for little or nothing in return.

In disgust, he quit his lucrative job, and secretly pointed the media to three of the telltale money-for-nothing contracts, a move that would eventually help blow the lid off the sponsorship scandal.

Ruined careers

But for all their best intentions, these two honourable Canadians found themselves plunged into a hell of ruined careers and overturned lives.

No matter how much today's much-anticipated report validates their claims, the cost of vindication makes any victory bittersweet at best.

As far back as 1994, Cutler began noticing a pattern of rule-bending, shady deals and even possible fraud in the awarding of federal advertising contracts.

At the time, Cutler's boss was Charles "Chuck" Guite, the Public Works executive who would subsequently run the $350-million sponsorship program.

In retrospect, it is hardly a surprise that Cutler's complaints to Guite fell on deaf ears.

Finally forced on to stress medication, Cutler wrote in his diary: "Ethics and integrity seem to be minor considerations when it comers to advertising contracts."

After months of Cutler's complaining that contracts with Montreal ad agencies were being falsified, two internal government audits backed his claims. The day after the second audit was completed, Cutler was summoned to Guite's office and told his auditing job was being declared "redundant."

In an interview yesterday from his home, where he is now retired, Cutler sounded something between relieved and resigned as he awaited Gomery's findings.

"What more can they do? I've been beaten up by the best," he said with a chuckle. "It ruined my career; there's no doubt about that. My name was mud."

The story of the whistleblower at the Montreal ad agency was much the same. Unable to condone the fraudulent ad contracts flowing through his firm, he walked out the door and straight into a career dead end.

The tight-knit Montreal ad community, by then swimming in sponsorship contracts, shunned him for not being a team player. For the same reason, the government advertising authorities blacklisted him from all federal business for the duration of the sponsorship program. Since then, the feds have banned him for his previous association with one of the Adscam companies.

No regrets

Today, like Cutler, he is more resigned than bitter over the enormous personal cost of his whistleblowing.

But what really bugs him is "how few people have been held accountable" for the $250-million Adscam mess.

"If a guy stole $250 from the corner store, justice would be a lot swifter and harsher than what's happening in the sponsorship thing," he said yesterday.

Perhaps Gomery's report will finally assign the blame where it is due. Maybe not. Either way, Allan Cutler has no regrets that he stood up for what he thought was right.

"Was it worth it? Yes. With everything that went on, I never regretted the decision at all. You have to take some responsibility for your life."

Whatever Gomery says today, Canadians owe a lot to the auditor and the adman

Slapp suits are beginning to appear useful to those financial organizations who may have something to hide from the public. They may allow such organizations to avoid publiciity of less than client first behavior and to avoid the responsibility for same. It will be interesting to follow the activities and watch.

In 1997, Elizabeth Weir, Leader of the NDP in New Brunswick, introduced a bill to the New Brunswick legislature to protect the citizens and environmental groups of the province from corporate SLAPP suits. This bill was defeated on first reading. British Columbia however, did pass "The Protection of Public Participation Act" (Bill #10) into law, as reported in the Sierra Legal Defence Fund's Newsletter #28 dated September 2001. This bill specifically targeted SLAPP Suits. BC remains the only province in Canada to introduce such legislation.

admin wrote:"SLAPP suits function by forcing the target into the judicial area where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more the litigation can be churned, the greater the expense that is inflicted, the closer the SLAPP filer moves to success. The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits will often choose in the future to remain silent".

This is a US problem. For those that are unaware the following definition will help.

A Strategic Lawsuit Against Public Participation, in which a corporation or developer sues an organization in an attempt to scare it into dropping protests against a corporate initiative. SLAPP suits typically involve the environment--for example, local residents who are petitioning to change zoning laws to prevent a real estate development might be sued in a SLAPP suit for interference with the developer's business interests. Many states have "anti-SLAPP suit" statutes that protect citizens' rights to free speech and to petition the government.

There has been little legal action in Canada which would remotely qualify here. Further, there has never been any kind of legislation contemplated restricting the use of the courts for redress. Individuals and organizations are held to be responsible for their actions and statements since there is no equivalent law to the US First Amendment.

The allegation of a SLAPP suit usually emanates from individuals and organizations who have engaged in questionable tactics that can give rise to liability under defamation laws. The plaintiff in a law suit will seek injunctive relief against the offending behavior. In order to achieve this, the plaintiff must provide proof that the continuation of the behavior will have an adverse effect on the ability of the plaintiff to have a fair trial or that the behavior will further damage the reputation of the plaintiff. Once injunctive relief is granted there may be little reason to continue with the litigation since it is the behavior that causes the problem. However, if the behavior has been so egregious, the plaintiff may pursue the litigation to gain a permanent injunction as part of the award of damages.

Anonymous wrote:you asked what section of the Telus Acceptable Use policy these posts violated. The section is as folows: ...

Defamation [/i]

I have highlighted the offending area but please note that it also covers any activity that goves rise to civil liaility to Telus.

Golly, Bri, you paid your lawyer half a million bucks and he still hasn't explained the doctrine of absolute privilege to you. Shiirley's complaint is a public document filed with a court. Republishing or linking to the document is not defamation in any common law court.

Get stuffed.

What you are referring to is qualified privilege not absolute privilege. Qualified privilege refers to statements made or published by an individual, not acting out of malice, which represent fair reporting of allegations, which if true, are in the public interest. Generally, qualified privilege applies to statements made by the media. However, while reporters my not have personal knowledge as to the truth or falsity of a statement, they are advised to examine the character of the source. If it can be shown that the reporter exhibited malice in reporting even a true statement, it is likely that a successful case can be made for defamation.

Absolute privilege refers to statements made by someone under oath or statements made by a politician in a session of the legislature or parliament. Statements made by someone under oath cannot result in defamation even if false but they can result in a civil charge of malicious prosecution or a criminal charge of perjury.

I would refer to two cases that are on point with regards to the publishing of false statements. Hill v. Church of Scientology of Toronto and Gutnick v Dow Jones.

The former is a Canadian case that has similarities to the actions of people on this board and others. Salacious statements have been made regarding the false allegations in the pleadings within a law suit that are intended to adversely affect the defendant’s reputation. These statements have been made maliciously. This was the exact circumstance in the Hill case. The only difference was the medium of publication. In the Hill case, the defendant made public statements about the plaintiff that were false and malicious. The internet has been the medium of communication here. It may come as a surprise to some, but the internet has no special dispensation from the laws regarding defamation. In Hill v. Church of Scientology of Toronto, the plaintiff was awarded $1.6 million dollars. This is the largest libel award ever upheld by the Supreme Court.

The other is an Australian case that indicates that defamation laws of one country are applicable to an entity that uses a foreign facility to publish offensive material. The case was appealed to the Australian High Court and the decision upheld. The case of Gutnick v Dow Jones resulted in a $440,000 USD out of court settlement.

Characteristically, the SLAPP suit claims a huge amount of money, often alleging conspiracy or joint malfeasance to silence and intimidate as large a group as possible. They are often not designed to be won, but simply to force critics to hire lawyers and spend time and money fighting the lawsuit rather than pursuing their cause. If this goal is accomplished, then the SLAPP will have been effective even if it is eventually dismissed or abandoned. The mere threat of a SLAPP suit may have the effect of discouraging public debate. (SLAPP suits take the form of a civil suit for damages or injunctive relief filed against an individual or organization, and arise because of communications by the defendant(s) to a government body, official or the electorate.)

SLAPP suits can silence individuals and organizations who would otherwise make invaluable contributions toward issues of public importance. The fear created by a SLAPP suit influences many constituencies. Environmentalists, politicians, union leaders, advocates of any kind may be quieted by the risk of the expense, uncertainty and hardship involved in defending their right to voice their legitimate concerns in public debate. SLAPP suits silences the citizens upon whom our democracy is built and turns the judicial process into a weapon against public dissent.

"SLAPP suits function by forcing the target into the judicial area where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more the litigation can be churned, the greater the expense that is inflicted, the closer the SLAPP filer moves to success. The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits will often choose in the future to remain silent".

"A SLAPP suit is an abuse of the Court's process designed to stifle legitimate public debate", according to the Sierra Legal Defence Fund. SLAPP stands for "Strategic Lawsuits Against Public Participation." SLAPP suits can silence individuals and organizations who would otherwise make invaluable contributions toward issues of public importance. The fear created by a SLAPP suit influences many constituencies. Environmentalists, politicians, union leaders, advocates of any kind may be quieted by the risk of the expense, uncertainty and hardship involved in defending their right to voice concerns.

The Sierra Legal Defence Fund identifies the following characteristics of a SLAPP suit

the plaintiff is usually a mid to large-sized company
the suit claims enormous damages and generally seeks and injunction
the defendant has been speaking out with some success in an attempt to influence government policy or public perception; and
the issue is one of public interest or concern

thank you for continuing to support this forum and keep it on top of peoples minds. I find your dootie head comments humorous enough not to delete. They somehow give investor advocates comfort knowing what we are dealing with. I thank you for that.

A new forum topic is being started titled SLAPP SUITS. It will perhaps relate to this forum for those who follow it.

Anonymous wrote:you asked what section of the Telus Acceptable Use policy these posts violated. The section is as folows: ...

Defamation [/i]

I have highlighted the offending area but please note that it also covers any activity that goves rise to civil liaility to Telus.

Golly, Bri, you paid your lawyer half a million bucks and he still hasn't explained the doctrine of absolute privilege to you. Shiirley's complaint is a public document filed with a court. Republishing or linking to the document is not defamation in any common law court.

that means an investment firm can realize an increase of between ten to twenty six fold in the amount of revenues they retain if the switch clients from third party mutual funds into their own proprietary funds. (Switch from AUA, assets under administration, to AUM, assets under management)

In my March 2, 2001 article I introduced the concept of wrap programs and gave an overview of the costs and benefits. In case you missed it, I make no secret about my dislike for these hot-selling products. I won't get into the details again, but I do want to focus your attention more closely on Assante Corporation's Optima Strategy pooled wrap program.

Optima Strategy is one of the country's larger wrap programs and it has the dubious honour of being the most expensive pooled wrap in the country. However, that's just one of the reasons why investors shouldn't leap blindly into this product.

High fees

For years, Assante's Optima Strategy pooled wrap program has been the most expensive product of its kind. While most programs have been charging in the 2.5 to three per cent range, Optima has consistently charged 0.5 to 1.3 per cent above its competitors. Problem is, in this case investors don't necessarily get what they pay for, in my opinion.

Two fee modifications over the past year or so haven't changed that situation. Just over a year ago, I completed my first in-depth analysis of wraps and estimated that Optima clients could have been paying as much 3.31 per cent annually for a balanced portfolio (defined as 25 per cent Canadian equity, 20 per cent US equity, 20 per cent international equity, 30 per cent bonds, and five per cent cash).

In my more recent report in February of this year, I found that fees for this same hypothetical balanced portfolio jumped to a maximum 3.47 per cent. Fees have changed again (see below).

Fee reduction - not

Optima Strategy amended its fees just two months ago, which was spun as a fee reduction. However, that's not quite how it transpired. After reviewing the new fee structure, it appears as if some Optima clients will see fees fall, while others will see a hike in fees.

Optima is the only wrap program of its kind, to my knowledge, that offers a deferred sales charge (DSC) option on its funds. (Recall that investing on a DSC basis means paying nothing directly up front, but you face an exit fee if you sell within seven years while your advisor gets a lump sum commission payment of four to five per cent of the amount invested for his/her advice.)

While selling funds on a DSC basis is still pretty common, I must say that it's quite unusual for portfolios as large as those targeted by this program ($100,000 and up). New fees for Optima Strategy are now estimated at 3.22 per cent annually for DSC investors, and 3.6 per cent for those investing on a front-end load basis (based on the balanced portfolio noted above).

Reasons for its dubious honour

As mentioned in my previous article, I think most wrap programs charge more than is warranted for their services. However, we've already seen that Optima Strategy is considerably more expensive than its peers. Why? A big part of the reason stems from the fact that a DSC option exists on their funds.

The up-front payouts to Assante financial advisors likely cost the company 0.6 per cent per year to finance out of the total Optima fees. That alone would bring their fees down to the higher end of wrap fees' normal range - but at least it would be in the range. If you have more than $750,000, you'll qualify for a fee reduction of 0.5 per cent.

While that's quite "admirable" of Assante, the fact is that most portfolios of that size require a much more customized solution than that available in any pooled wrap program. Further, larger portfolio sizes should benefit from lower management fees - not punished with higher fees.

The other reason: Optima charges investors extra for a fundamental service that all other wrap programs already include in their base fees. Remember that most wrap programs build portfolios and then monitor and rebalance them regularly. While Optima Strategy provides a similar service, it's optional and comes with added costs for Optima clients, ranging from an extra 0.65 per cent for DSC investors to one per cent per year for front-end load investors. Note: the all-inclusive fees mentioned throughout this article include this monitoring and rebalancing fee to make it more comparable to its peers.

A second level of potential conflicts

Many argue that financial advisors who are compensated on a commission basis have a potential conflict since they may be biased toward those products that pay the best commissions. In such a case, investment funds from great firms like Beutel Goodman, Mawer, Perigee, PH&N and exchange-traded funds (ETFs) have potential to be ignored, since they either pay substantially less in commissions or nothing at all. However, many of the financial advisors recommending Optima Strategy to their clients have a whole other level of potential conflicts - something that may be unknown to prospective clients.

Assante's business model has resulted in many of the company's financial advisors owning a relatively large number of Assante Corporation shares (TSE:LMS), which has sagged badly since its debut on the Toronto Stock Exchange in 1998. Many of the advisors recommending Assante's Optima Strategy program are also significant shareholders. This presents significantly more potential for conflict for Assante advisors.

From a corporate standpoint, Assante seeks to maximize profits. One of the biggest factors in its profitability is the growth of its proprietary (i.e. in-house) products, such as Optima Strategy. In Assante's prospectus for its public share offering in 1998, the following was observed:

Assante's financial advisors grew in number by 1,613 per cent from 1995 to 1998, while assets in its in-house products (primarily Optima) grew by 563 per cent.
Assante believed that to survive as a fund company (i.e. fund manufacturer), the key was to partner with established financial advisory firms with an extensive base of advisors and clients (i.e. a large distribution channel).
By growing assets in its proprietary products, there is the potential for a nine- to 16-fold increase in operating margins.
Assante's strategy is to partner with the owners of those firms and their advisors who are responsible for the client relationships and, ultimately, control of the "shelf space." Shelf space refers to ranking among financial advisors' preferred list of mutual fund companies they recommend to clients.

To be fair, Assante isn't the only firm in this position, but they've been the most aggressive in their growth-by-acquisition strategy. Dundee and IPC are other similar firms in that they each have proprietary products and a network of advisors. However, Assante stands out in its apparent goal to use its growing advisor base to increase its in-house funds, most of which have fees that are far greater than their peers.

It must be said that I know of no wrongdoing by this company or its advisors, and I'm not implying that I do. Frankly, its corporate goal of maximizing profits is great for shareholders, but it conflicts directly with the interests of most of its clients. There simply is no getting around that, but it's a reality of which investors need to be aware because it's a strongly growing trend in this industry.

To disclose my potential conflict: on some level, Assante is one of my employer's competitors and advisors at Sterling cannot sell Optima Strategy. Though I always strive to deliver objective advice in all aspects, this fact should be known.

As always, investors beware. Do your homework and don't be afraid to ask direct questions.

Dan Hallett is the President of Dan Hallett and Associates Inc.("DH&A") - a
Windsor Ontario based independent investment research firm.

go to this web site to see pdf file of the class action filed in the states

pages one and two of the intro are almost a line by line description of what I have been hearing as "standard industry practice" by some here in Canada. (the practice of pushing clients into proprietary funds to increase management and advisor earnings)

this will be dually posted in class action forum as it may be of use to those